“Every decision is binding no matter whether it is reported in the regular series of Law Reports, or is unreported. Once you have the transcript, you can cite it as of equal authority to a reported decision. It behoves every counsel or solicitor to find, if he can, a case – reported or unreported – which will help him advise or win his case.” = Lord Denning
Before we can understand what exactly the term “Reported Judgements Vs Unreported Judgements” and why it is important to know about its relevance it is important to know the meaning of the term “Precedent” as “Precedent” gives rise to the differentiation of Reported Judgements Vs Unreported Judgements”
As every Litigation Lawyer knows, precedents matter. Let us understand how exactly the “Precedents matter” evolved in India. The doctrine of precedent depends entirely on the court being made aware of the earlier decision by which it is bound.
The Theory of binding force of precedent is firmly established in England. A judge is bound to follow the decision of any court recognized as competent to bind him, and it becomes his duty to administer the law as declared by such a court. The system of precedent has been a powerful factor in the development of the common law in England. In spite of some codification of law, it would be still correct to say that the English law is precedent-oriented* A similar theory has come to prevail in India since the advent of the British system of justice. As early as 1830, Dorin, who later became a judge of the Sadar Diwani Adalat at Calcutta, advocated the idea of giving statutory basis to the doctrine of precedent in India in these words “I think it should be enacted by a Regulation that from a given period, the judgments of the court shall be considered as precedents binding upon itself and upon the inferior courts in similar cases which may arise thereafter. This will have the effect of making the superior courts more cautious and of introducing something like a system for the other courts, the want of which is now very much felt…Hitherto it has not been the custom to refer to precedents and for aught the judges of the court may know, the same points may have been decided over and over again and perhaps not always the same way. It is obvious, that having something like a system established would tend to abridge the labour of civil courts”. In a number of cases, the High Courts declared the doctrine of precedent and laid down that subordinate courts were bound by the decisions of the High Court even if the lower courts did not agree with the correctness of a particular decision.* As the Law Commission, Law Comm., XIV Rep., I. 626, has observed. The decisions of the High Courts have not been invested with the authority of law by any enactment. But it is well settled that the courts subordinate to a High Court are bound by its decisions and it is not open to them to refuse to follow the law as interpreted by that High Court. The High Courts have made this clear in a number of decisions and have gone so far as to characterize refusal on the part of subordinate courts to follow their decisions as being tantamount to insubordination. To a limited extent, statutory recognition was given to the theory of precedent when Section 212 of the Government of India Act, 1935, laid down that the decisions of the Privy Council and the Federal Court would be binding upon the courts in India. Art. 141 of the present Constitution lays down that the law declared by the Supreme Court shall be binding on all courts within India. As regards the High Courts, however, the theory of precedent is still based on judicial declarations. It is thus clear that in India, the binding force of precedents is firmly established. The Judgements delivered by the superior courts are as much the law of the country as legislative enactments. The Law Commission has gone into the question whether or not the doctrine of precedent should operate in India. It has come to the conclusion that it should continue to operate and it has counted the following, among others, as its advantages. The doctrine makes for uniformity and certainty in the administration of law; it tends to promote convenience and avoid delays. If earlier decisions were not recognised as binding every court would have to decide the same question over and over again on principle, which would cause delay and increase the burden of the judges to the breaking point.
The theory of precedent brings in its wake the system of law reporting as its necessary concomitant. Publication of decisions is a condition precedent for the theory to operate; there must exists reliable reports of cases; if the cases are to be binding there must be precise records of what they do lay down and it is only then that the doctrine of stare decisis can function meaningfully. An attempt will therefore be made here to survey the efforts made in India to create a system of law reporting.
Source: Taken from Book Titled as “Theory of Precedent – LAW REPORTING IN INDIA by Mr. M.P. Jain. Sharing here to read and to understand about the evolution of Precedents in Indian Courts.
Now as we have understood the term “Precedents matter”, Let us understand what is “Reported Judgements and Unreported Judgements”?
This is one of the most important aspects to understand for Lawyers and also to the Professionals who deals in Litigation and also to Litigant as all Judgement does not work in equal manner. The Judgements are categorized in two ways, as under:
• Reported Judgements
• Unreported Judgements
Reported Judgements means the judgments which are published in Law Reports. Reported Judgements are those which deal with relevant points and matters and which are significant and has its impact and are considered to be valuable precedents and hence are included in Law Reports.
Unreported Judgements are those which are not considered that important for being getting report or may be the recent Judgement which not yet reported but may be reported later. Unreported judgments are decisions that have not been published in an official law report. Despite this, unreported judgments are useful as they may provide commentary by the Courts on unique issues that have not been discussed in reported judgments.
Which type of Judgement forms Part of Law System?
Unreported Judgments, like Reported Judgments, form part of the law system
What is non-reported Judgement?
In Dharamraj Bhanushankar Dave v. State of Gujarat, 2015, decided on 19-01-2017, the Court observed that there are no specific provisions pointed out by the petitioner which have been violated by publication of the impugned judgment and as prayed by petitioner, it would not be covered under the ambit of Article 21 of the Constitution. It was clarified by the Court that reportable or non-reportable is the classification made for the reporting of a judgment in law-reporter and not its publication anywhere else while taking into consideration the important fact that High Court was a court of record.
In brief, in our view, the following are the key for us to understand:
• Unreported Judgments are useful as it may contain decisions or commentary on issues that are not reflected in Reported Judgments and can use in the matters;
• There is no doubt that Court prefers Reported Judgments but nothing taking away from the Unreported Judgments;
• As Unreported Judgment is part of law system and in my view forms as precedent, you can rely on Unreported Judgment as it may add value to the current proceeding;
• Please note that before mentioning it shall fully disclose about the unreported judgment being relied upo